DALLAS COUNTY — The U.S. Supreme Court has scheduled a conference to review a petition filed by Texas death row inmate Charles Flores. Flores requested an order for the Texas Court of Criminal Appeals to review his murder conviction, which is based on eyewitness testimony that his defense argues was influenced by hypnosis.
Flores received a death sentence in 1999 for the murder and robbery of 64-year-old Betty Black, who was fatally shot along with her dog in her Dallas County residence. Prosecutors during the trial relied on testimony from neighbor Jill Barganier, who identified Flores as one of two individuals entering Black's home on the morning of the killing.
Barganier testified that she sought police hypnosis to enhance her description of the suspects. Farmers Branch police officer Alfredo Roen Serna conducted the hypnosis session despite lacking prior experience with the procedure. Barganier initially described the suspects as two white men with long hair.
During the hypnosis session, Officer Serna repeatedly questioned Barganier about whether either suspect had short, trimmed hair. Flores is a Hispanic man who had short hair at the time of the offense. Barganier did not identify Flores in a photo lineup conducted immediately after the hypnosis session; she identified him as a suspect only during her testimony in court. The trial judge at the time dismissed defense concerns regarding potential hypnosis and media contamination of the witness testimony.
The Texas Court of Criminal Appeals has previously rejected three of Flores' appeals under the state's junk science statute, which permits inmates to challenge convictions based on scientific procedures or evidence later deemed unreliable. A Texas court stayed Flores' scheduled 2016 execution to review scientific evidence concerning the witness hypnosis, but the appeals court subsequently refused to overturn the conviction.
In opposition to Flores' current petition, the Dallas County district attorney's office filed a brief arguing that Flores was provided an opportunity to be heard. Attorneys for the state wrote, "Simply because Flores did not prevail does not mean he was not given the opportunity to be heard."
Attorney Gretchen Sween wrote, "[In] these narrow circumstances, where a state has created a liberty interest specifically to avoid executing the innocent, due process demands more than unexplained summary dismissal in response to a substantial threshold showing of actual innocence."
Barganier's initial suspect descriptions corresponded with Robert Childs, an associate of Flores. She selected Childs' photograph from two separate lineups before undergoing hypnosis. Childs pleaded guilty to the murder of Betty Black in 2000 and was granted parole and released in 2016.